Law Times

Law Times • November 15, 2010 and trial was set for 2011. Bail conditions allowed father to have access to child. Mother complained grandparents' resi- dence was unsafe because they did not appreciate seriousness of father's actions and wanted to turn child against her. Mo- tion allowed. Mother was being entirely unreasonable, given her previous reliance on grandpar- ents for child care. Grandpar- ents had always acted in child's best interests. Grandparents were not involved in confl ict be- tween parents. Child thrived in grandparents' care. Grandpar- ents granted access on alternate weekends and Wednesday eve- nings. Father could have super- vised access during these times. Gangaram v. Viens (Aug. 24, 2010, Ont. C.J., Dunn J., File No. 648/10) 192 A.C.W.S. (3d) 1203 (5 pp.). Municipal Law ACTIONS AGAINST MUNICIPALITY Trial judge's conclusion that municipality met required standard of care in respect of salt- ing of roadway was supported on record Appellant was driving to work when she hit icy patch on road, lost control of her car and col- lided with oncoming truck, suff ering serious head injury. Appellant sued municipality for negligence for failing to main- tain roadway in reasonable state of repair. Trial judge dismissed action, fi nding that municipal- ity had adequately salted road- way shortly before accident oc- curred, but that light blowing snow had delayed salt's eff ec- tiveness and that municipality had met applicable standard of care because it had done all that could reasonably be required of it. Trial judge's fi ndings of fact and his conclusion that munici- pality met standard of care re- quired of it were well supported in record. Appellate interven- tion was not justifi ed. Frank v. Central Elgin (Munici- pality) (Sep. 8, 2010, Ont. C.A., Laskin, Feldman and Gillese JJ.A., File No. C50059) Deci- sion at 174 A.C.W.S. (3d) 266 was affi rmed. 192 A.C.W.S. (3d) 1365 (20 pp.). Real Property EASEMENTS Cottagers acquired right-of-way over laneway by prescription Laneway was means by which cottagers accessed properties. Plaintiff had legal title to most of laneway. Plaintiff wanted municipality to assume laneway as municipal road. Municipality refused until laneway was up- graded to municipal standards. Plaintiff did not use laneway and did not want to pay for up- grades. Cottagers were not pre- pared to contribute to upgrad- ing of laneway. Plaintiff sought injunction preventing cottagers from using laneway until cot- tagers upgraded laneway. Plain- tiff sought declaration cottagers did not have prescriptive ease- ment over laneway. Cottagers brought motion for summary judgment. Cottagers' motion was allowed. Cottagers acquired right-of-way over laneway by prescription. Plaintiff 's motion for declaration was dismissed. Plaintiff 's motion for injunction was dismissed. Issues about re- pair of laneway were referred to trial judge. Sunnybrae Springbrook Farms Inc. v. Trent Hills (Municipal- ity) (Sep. 2, 2010, Ont. S.C.J., Lauwers J., File No. CV-06- 081438) 192 A.C.W.S. (3d) 1372 (24 pp.). Wills And Estates ESTATE ADMINISTRATION Daughter's application for declaration that mother died was allowed Daughter brought application for declaration that mother died. Application was allowed. Mother was absent for at least seven years. Daughter did not hear from mother since mother disappeared. After making rea- sonable inquiries no other per- son heard from mother since disappearance. Daughter had no reason to believe mother was alive. Belief was reasonable given mother's mental health and attempts to commit suicide. Th ere was suffi cient evidence to fi nd mother was dead. Mezo (Re) (Sep. 13, 2010, Ont. S.C.J., Horkins J., File No. CV-10-00408446-0000) 192 A.C.W.S. (3d) 1403 (4 pp.). ONTARIO CRIMINAL CASES Arrest LEGALITY Officer's grounds for arrest, though unlawful, were not arbitrary Accused young person charged with robbery and attempted robbery. Accused applied to ex- clude evidence based on breach of s. 8 of Canadian Charter of Rights and Freedoms. Com- plainants were approached by four young men who tried to rob them. Witnesses gave de- scription of robber to offi cer, who reviewed video footage from building. Video footage showed young man with dis- tinct profi le carrying bag con- sistent with stolen bag. Offi cer encountered accused, saw his distinctive features and cloth- ing and concluded that he was same young person depicted in video image. Offi cer arrested ac- cused. Accused argued his arrest was unlawful. Application dis- missed. Offi cer came to his con- clusion honestly and after care- ful investigative work. Viewed objectively, court came to diff er- ent conclusion on reasonable- ness of offi cer's grounds. With exception of description "male black", none of eyewitness de- scriptions specifi cally matched that of accused. Offi cer's deci- sion to arrest accused for rob- beries fell just short of what was reasonable in circumstances. Offi cer acted prematurely in ar- resting accused, but there was rational, although mistaken, CASELAW basis for his conclusion. Of- fi cer's grounds for arrest for of- fences, though unlawful, were not arbitrary. Accused was un- lawfully arrested and any search conducted pursuant to and any statement obtained as result of, arrest was obtained in breach of his s. 8 Charter rights. Offi cer's decision to arrest accused was conducted after careful inves- tigation and in good faith and judicial acceptance of his con- duct would not bring adminis- tration of justice into disrepute. Breach was minor. Admission of evidence obtained by breach would not bring administration of justice into disrepute. R. v. B. (S.) (Sep. 14, 2010, Ont. C.J., Barnes J.) 90 W.C.B. (2d) 170 (15 pp.). Charter Of Rights TRIAL WITHIN REASONABLE TIME Although accused suffered great deal of prejudice, this was result of charges themselves and not delay Individual accused was con- victed of 26 off ences contrary to Fire Protection and Prevention Act, 1997 (Ont.). Corporate accused was convicted of two off ences contrary to Fire Protec- tion and Prevention Act, 1997. Both accused appealed their convictions. Total delay from swearing of Information to con- viction varied, depending on In- formation in question, between 18 and 21 months. Counsel for accused regularly made it clear that he was concerned process was taking too long, individual accused was 80-years old and key defence witness had terminal cancer. Trial required 10 days of court time. Appeal with regard to issue of delay dismissed. In circumstances evidence in case was heard within very reason- able time considering inherent time requirements of case and limits on institutional resources. Adjournment by justice of peace so she could prepare reasons for her decision was quite reasonable in light of number of off ences, amount of evidence heard and complexity of issues raised dur- ing argument. Although accused suff ered great deal of prejudice as result of fact prosecutor was seeking to send him to jail as well as public humiliation of press coverage essentially ac- cusing him of causing death of another person. Th is was result of charges themselves and not delay. Th ere was no evidence that delay exacerbated stress ex- perienced by accused. Th ere was no indication that any of ac- cused's witnesses were unable to give their evidence fully because of time that had elapsed in pro- ceedings. Niagara (Regional Municipal- ity) v. DiFruscia (Sep. 23, 2010, Ont. C.J., Harris J., File No. 2111-999-08-0277; 2111-999- 08-0278; 2111-999-08-3351; 2111-999-08-3352) 90 W.C.B. (2d) 229 (18 pp.). Evidence OPINION EVIDENCE Application to qualify witness as expert in areas of urban street lan- guage and gang slang was allowed www.lawtimesnews.com Crown applied to qualify wit- ness as expert in areas of urban street language and gang slang. Witness testifi ed that urban street language was not particu- lar to gangs but was sometimes derivative of gang slang and that interpretation of words in urban street language was de- pendent on context in which words were uttered. Accused argued that witness could not opine on issue of gang slang as that was language particular to criminal street gangs. Accused argued that there was no sugges- tion he was gang member and to raise issue of gangs and gang slang in front of jury could be highly prejudicial and unfair. Accused argued that expert tes- timony was not necessary to assist triers of fact. Application allowed. Crown agreed that wit- ness should provide expert opin- ion only in area of urban street language and its interpretation. Some of expressions in issue were not words jurors from mainstream society would be familiar with. Translation of words and expressions was nec- essary in order for jury to com- prehend statements attributed to accused during his alterca- tion with victim. Concerns re- garding use of expert testimony such as undue consumption of time, prejudice and confusion were minimal. Evidence of wit- ness would not be time-con- suming or overly complex and jury would be able to critically assess it. Cross-examination to expose any weaknesses in opin- ion would not be diffi cult and defence could elicit alternate PAGE 15 opinions from others who were familiar with language, if it saw fi t. Four criteria used to deter- mine admissibility of expert opinion were met. R. v. M. (C.) (Aug. 30, 2010, Ont. S.C.J., Th orburn J., File No. YO-9/09) 90 W.C.B. (2d) 192 (3 pp.). Publication Bans And Restrictions GENERAL Crown and victim consented to publication of accused's name Motion was made by Crown on its application to have accused designated dangerous off ender, to revoke any previous order banning publication of accused's name. Accused was found guilty of sexual assault and touching body of female with parts of his person for sexual purpose. During accused's trial court had granted Crown motion for pub- lication ban on both accused and complainant. Victim consented to lifting ban on publication of accused's name. Court ordered that publication ban on name of off ender was revoked subject to condition that victim wrote and signed short letter to court expressing her consent, ban on publication of victim's name continued. As both Crown and victim consented to publication of accused's name, circumstances that made ban mandatory pur- suant to s. 486(4) of Criminal Code were no longer present. R. v. Radcliff e (Sep. 24, 2010, Ont. S.C.J., Lalonde J., File No. 07-19956) 90 W.C.B. (2d) 230 (4 pp.). LT When More is Too Much Starting from $62.50 per month Irrelevant cases chewing up your research time? Get the best cases first. There's no bones about it. BestCase not only has a comprehensive collection of unreported decisions, but our diamond image helps you quickly find decisions selected by experts to identify the most relevant cases first. BestCase is the only online source for Canada's leading law reports including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator It also contains case law you won't find anywhere else. You can print or download PDFs of both reported and unreported decisions – no photocopying required. BestCase allows you to track research, generate reports and manage your passwords using the Disbursement Manager. 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• For The Defence
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